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People v. Smith

MARCH 18, 1966.




Appeal from Circuit Court of Cook County, Criminal Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding. Reversed and remanded.


Defendant, a chiropodist, was convicted after a jury trial of unlawfully prescribing narcotics for Dan Daniels (a police officer) and was sentenced to the penitentiary for a term of not less than ten nor more than twelve years. In this appeal defendant contends that the court committed various prejudicial errors which deprived him of a fair trial and that the prescriptions are exempt under the Narcotics Act.

Officer Dan Daniels testified that on February 21, 1963, at approximately 10:00 p.m., he went to the defendant's office in the company of Jane Ferguson (a special police employee) and that he possessed $30 in prerecorded funds. The witness further testified that he had never before been a patient of Dr. Smith but had seen him previously; that Ferguson introduced him to Dr. Smith, after which defendant wrote Daniels a prescription for morphine (People's Exhibit 4) at the latter's request and without a physical examination; that he did not complain about any foot ailment; that after defendant handed him this prescription, he (Daniels) requested a prescription for dilaudid; that defendant wrote the second prescription (People's Exhibit 5), asked whether it should be under the same name, and was told to use the name Bernie Brown. Daniels also stated that he gave defendant the aforesaid $30; that he was in the office between five and ten minutes and that he could not recall whether defendant asked any questions relating to his physical condition; that he had a temporary heart strain and was excused from policy duty from November 16, 1962, to February 1, 1963, but he did not discuss this condition with the defendant; and that he found the $30 in prerecorded funds in defendant's pocket when the latter was arrested shortly thereafter.

Officer John Rouzan testified that he went to defendant's office at approximately 10:15 p.m. that same evening with $15 in prerecorded funds and was accompanied by William Passmore; that he was not a patient of the defendant; that defendant answered the phone and said "The fellow and girl that just left was — the fellow was a policeman," after which Rouzan told the defendant: "Get me a script, I want to get out of here before the policeman comes." The witness further stated that defendant asked his name and address, wrote something on a prescription blank and gave it to him using the name Jerry Vick (People's Exhibit 9); that he gave defendant the $15 and returned to his police car; that he and Officers Brown and Daniels returned to the defendant's office and placed him under arrest.

Charles Vondrak, a police officer and registered pharmacist, testified that Exhibit 4 was a prescription calling for thirty morphine tablets, one-quarter grain, and that Exhibits 5 and 9 each call for thirty dilaudid tablets, one-sixteenth grain; and that dilaudid is a dihydromorphinone hydrochloride.

Defendant testified in his own behalf and admitted that Dan Daniels was in his office with Jane Ferguson on the evening in question. He stated that he took Daniels into the consultation room where the latter complained of having pain in his foot; that no one else was present in the room; that he asked Daniels his name and address and how long he had that pain, whereafter Daniels replied that it was an excruciating pain in the front part of his foot which had troubled him for about a week; that Daniels told him that he had the pain once before and was given medicine which alleviated it, and that he (Daniels) had a heart condition. Defendant also testified that after Daniels answered several other questions he made a diagnosis of metatarsalgia, an excruciating pain in the forepart of the foot caused by the metatarsal bones pressing upon an injury in a nerve; that based upon his diagnosis he wrote a prescription (Exhibit 4); that the examination lasted ten or fifteen minutes and that he charged Daniels $15, his customary fee for a night call. Defendant further testified that shortly after Daniels left his office another man came into his office and he prescribed a pain reliever (which he identified as People's Exhibit 5). Defendant stated that the next visitor in his office (Officer Rouzan) was a highly nervous person; that he complained of difficulties with his feet; that he thought the patient was a diabetic but the patient told him that he wasn't; that he gave him a prescription (Exhibit 9) and charged the patient $15.

On cross-examination defendant testified that Jane Ferguson had been a patient for approximately three months prior to February 1963; that she had an oral and physical examination; and that he prescribed a treatment for her ailment.

Jane Ferguson, an admitted narcotics addict and police informer, testified in rebuttal and corroborated the testimony of Dan Daniels as to his receipt of the prescriptions. The witness also stated that she first saw the defendant in December of 1962, at which time she was addicted to morphine; that she never complained to the defendant of any foot ailment and that he never examined her feet but that the defendant gave her several prescriptions, each calling for morphine sulphate; and that she gave the defendant $15 for every prescription.

On cross-examination the witness stated that she was a dancer and admitted that she had been arrested twice, once for prostitution; that she last used narcotics on March 21, 1963; and that from February 21 to March 21 of that year she obtained her narcotics on the street. An effort was made to ascertain where she presently resided but an objection thereto was sustained.

Dr. Thomas Brandt, a podiatrist, testified that it is not within the general practice of podiatry to prescribe a narcotic drug without a physical examination. On cross-examination he testified that it is possible that a podiatrist could prescribe morphine-sulphate to relieve pain after an oral examination and a diagnosis of metatarsalgia; that it is conceivable that a podiatrist, in the course of his practice, might orally examine the patient and prescribe for him; and that morphine sulphate is a drug used to relieve pain, as is dilaudid.

The Uniform Narcotic Drug Act provides that a chiropodist, in good faith and in the course of his professional practice only, may prescribe narcotic drugs. *fn1 The jury found that defendant did not act in good faith in prescribing narcotics for Dan Daniels.

Defendant, contending that he was deprived of a fair trial, urges first that the court committed prejudicial error in allowing, over objection, People's Exhibits 1 and 6, respectively, to be introduced into evidence. These exhibits were subsequently passed to the jury for inspection. Exhibit No. 1 is a list by serial number of the bills which were allegedly given to the defendant by Officer Daniels. It bore the following legend:

The following is a list of official funds to be used in making a controlled purchase of narcotics from Dr. Lucius Smith.

Exhibit No. 6 is a similar list of bills which were allegedly given the defendant by Officer Rouzan and ...

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